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United States Court of Appeals for the Seventh Circuit
June 6, 2001, Argued ; July 20, 2001, Decided
Nos. 00-3648 and 00-3870
[*648] Posner, Circuit Judge. The plaintiffs in this suit under ERISA and section 301 of the Taft-Hartley Act are nine multiemployer pension and welfare funds established pursuant to collective bargaining agreements. The funds are complaining about delinquent contributions by a small Wisconsin construction company, between 1993 and 1998, and they appeal from a grant of summary judgment largely in the defendant's favor. The cross-appeal, which complains that the attorneys' fees awarded by the district court were excessive in view of the plaintiffs' lack of success on the merits, is premature on the view we take of the plaintiffs' appeal. There are some differences in the issues raised by the different funds, but for the sake of simplicity, and without affecting the legal analysis, we'll be able with one exception to confine our discussion to the fund related to the laborers' union.
The defendant failed to make contributions during [**2] the four-year period covered [*649] by the complaint on the schedule set forth in its collective bargaining agreement with the union. This much is conceded, but the district court permitted the defendant to offset against the fund's claim the amount by which the contributions sought by the fund exceeded the level of employer contributions specified in the 1991 collective bargaining contract. Although that contract expired in 1993, it contained an "evergreen" clause: if neither party terminated the contract, it would be renewed automatically. The union negotiated with other employers a successor contract increasing the amount of the required employer contributions, and submitted the new contract to the defendant too, but for unexplained reasons the defendant never signed it. Nevertheless the union billed the defendant for contributions at the new, higher rates specified in the successor contract--and the defendant paid, without a murmur (albeit often late), throughout the period embraced by the suit. It claims to have paid by mistake, having, it argues, by virtue of the evergreen clause no contractual obligation to contribute to the fund at any rate higher than that specified in the 1991 contract; [**3] and therefore it was entitled to the offset that the district court allowed it.
This is wrong on two grounds. The first is that the defendant's conduct in paying the higher rates uncomplainingly shows that it acquiesced in a modification of the 1991 contract, accepting at least so much of the successor contract that the union had tendered to it as established a new schedule of employer contributions to the fund. ] Nothing in the law of contracts requires that a contract, whether original or modified, must be signed to be enforceable. The contract needn't be in writing; if it is in writing, it needn't be signed, provided there's other evidence of acceptance, for example (a very pertinent example) by performance, In re Vic Supply Co., Inc., 227 F.3d 928, 932 (7th Cir. 2000); and if the contract is within the statute of frauds, a memorandum of the essential terms, signed by the party sought to be held to the contract, will suffice to make it enforceable. E.g., Consolidation Services, Inc. v. KeyBank National Ass'n, 185 F.3d 817, 819-20 (7th Cir. 1999). No statute of frauds defense is raised here--doubtless because the fund's partial performance, in paying benefits [**4] in accordance with the new schedule, took any contractual modification pursuant to which they were paid out of the scope of the statute of frauds. E.g., C.L. Maddox, Inc. v. Coalfield Services, Inc., 51 F.3d 76, 79 (7th Cir. 1995); compare Connor v. Commissioner, 218 F.3d 733, 741 (7th Cir. 2000). And this would mean, ] under general common law principles, that all that was required to make a modification of the defendant's obligations enforceable was that it be supported by consideration, Contempo Design, Inc. v. Chicago & N.E. Ill. District Council of Carpenters, 226 F.3d 535, 550 (7th Cir. 2000) (en banc); United States v. Stump Home Specialties Mfg., Inc., 905 F.2d 1117, 1121-22 (7th Cir. 1990), and that acceptance of the modification be manifested with sufficient definiteness to enable a judge or jury to conclude with reasonable confidence that, yes, it was accepted. Autotrol Corp. v. Continental Water Systems Corp., 918 F.2d 689, 692 (7th Cir. 1990).
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258 F.3d 645 *; 2001 U.S. App. LEXIS 16070 **; 26 Employee Benefits Cas. (BNA) 1799
Operating Engineers Local 139 Health Benefit Fund, et al., Plaintiffs-Appellants, Cross-Appellees, v. Gustafson Construction Corporation, Defendant-Appellee, Cross-Appellant.
Subsequent History: [**1] Rehearing Denied August 16, 2001, Reported at: 2001 U.S. App. LEXIS 19211.
Prior History: Appeals from the United States District Court for the Eastern District of Wisconsin. No. 96 C 956. Thomas J. Curran, Judge.
Disposition: Judgment reversed; case remanded; cross-appeal dismissed.
contributions, percent, liquidated damages, benefits, funds, plans, delinquent, common law, pension, modification, provisions, employees, collective bargaining agreement, district court, successor, parties, interest rate, unconscionability, contractual, restitution, contracts, monthly, reasons, offset
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